The Electronic Frontier Foundation (EFF) has released an analysis of the freedom of the press with regards to publishing the Wikileaks information. While I'm appreciative of their analysis, I remain unconvinced that it will make anyone less fearful, including me. I've included the analysis below, as their work is all licensed under the Creative Commons; however, I still recommend readers peruse their website.Legal Analysis by Kevin Bankston
When it comes to Wikileaks, there's a lot of fear out there on the Internet right now.
Between the federal criminal investigation into Wikileaks, Senator Joe Lieberman's calls for companies to stop providing support for Wikileaks and his suggestion that the New York Times itself should be criminally investigated, Senator Dianne Feinstein's recent Wall Street Journal op-ed calling for prosecution of Wikileaks founder Julian Assange, and even the suggestion by some that he should be assassinated, a lot of people are scared and confused.
Will I break the law if I host or mirror the US diplomatic cables that have been published by Wikileaks? If I view or download them? If I write a news story based on them? These are just a few of the questions we've been getting here at EFF, particularly in light of many US companies' apparent fear to do any business with Wikileaks (with a few notable exceptions).
We unfortunately don't have the capacity to offer individualized legal advice to everyone who contacts us. What we can do, however, is talk about EFF's own policy position: we agree with other legal commentators who have warned that a prosecution of Assange, much less of other readers or publishers of the cables, would face serious First Amendment hurdles (, ) and would be "extremely dangerous" to free speech rights. Along with our friends at the ACLU, "We're deeply skeptical that prosecuting WikiLeaks would be constitutional, or a good idea."
Even better than commentary, we can also provide legal information on this complicated issue, and today we have for you some high quality legal information from an expert and objective source: Congress' own research service, CRS. The job of this non-partisan legal office is to provide objective, balanced memos to Congress on important legal issues, free from the often hysteric hyperbole of other government officials. And thanks to Secrecy News, we have a copy of CRS' latest memo on the Wikileaks controversy, a report entitled "Criminal Prohibitions on the Publication of Classified Defense Information" and dated this Monday, December 6.
Like this blog post itself, the CRS memo isn't legal advice. But it is a comprehensive discussion of the laws under which the Wikileaks publishers — or anyone else who obtains or publishes the documents, be it you or the New York Times — might be prosecuted and the First Amendment problems that such a prosecution would likely raise. Notably, the fine lawyers at CRS recognize a simple fact that statements from Attorney General Eric Holder, the Senators, the State Department and others have glossed over: a prosecution against someone who isn't subject to the secrecy obligations of a federal employee or contractor, based only on that person's publication of classified information that was received innocently, would be absolutely unprecedented and would likely pose serious First Amendment problems. As the summary page of the 21-page memo succinctly states,
This report identifies some criminal statutes that may apply [to dissemination of classified documents], but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.
The report proceeds to discuss the Espionage Act of 1917 and a number of other potentially applicable statutes, followed by an extended discussion (at pp. 14-20) of how the Supreme Court's First Amendment decisions — and in particular the Pentagon Papers case — could complicate such a prosecution. For anyone interested in or concerned about the legality of publishing the Wikileaks documents and the legal and political challenges to a successful prosecution, this CRS memo is an absolute must-read.
Hopefully, this information will help counter much of the fear that our government's so-called "war" against Wikileaks has generated. Meanwhile, we will continue our effort to oppose online censorship and provide additional news and commentary on the ongoing WikiLeaks saga, which is shaping up to be the first great free speech battle of the 21st century. We hope you'll join us in the fight.
Related Issues: Free Speech
Related Cases: Bank Julius Baer & Co v. Wikileaks